The issue in this writ petition concerns itself with re-designating a non-teaching post as a teaching post. 2. The facts in brief are that the petitioner, who possessed Post Graduation Degree in Psychology, being a Tutor, also possessed M.Phil. and Ph.D. After having been subjected to regular selection process by a statutory Selection Committee, the petitioner is said to have been appointed on 08.06.1994 as Clinical Psychologist in the respondent University. Prior to joining the respondent University, the petitioner worked in Government Medical College, Kottayam, and immediately prior to that, she worked with NIMHANS and NIMH, two National Level Institutions of repute, at different points of time, though.
3. As could be seen from the record, and as has not been seriously disputed by the respondent University, when one of the Assistant Professors in the department went on leave, the petitioner was given the additional responsibility of teaching right from her initial entry into service. Later, since the incumbent Assistant Professor, namely Sri. M.X. James, who initially went on long leave, has eventually resigned the post, the petitioner has applied to the authorities seeking re-designation of her position from Clinical Psychologist, a non-teaching post, as Assistant Professor, a teaching post.
4. As could be seen from the record, through Exhibit P12, the Academic Experts' Committee recommended the re-designation of the petitioner. The respondent University, however, instead of re-designating the petitioner, referred the matter to the Government. Eventually, the Government through Exhibit P16 order rejected the proposal of re-designating the petitioner. Under those circumstances, the petitioner filed the present writ petition, firstly, assailing the action of the respondent University in referring the matter to the Government, instead of taking a decision on its own as been illegal and arbitrary. Secondly, he has also sought quashing of Exhibit P16 as well.
5. In the above factual background, the learned Senior Counsel for the petitioner has strenuously contended that the petitioner has an exceptional academic record, as is evident from Exhibit P9 commendatory letter issued by the Vice-Chancellor of the respondent University. He has also further contended that, as could be seen from Exhibit P8, all along the petitioner has been assigned the task of teaching on a daily basis, and she has fixed syllabus, too, based on the time table issued from time to time in every academic year. According to the learned Senior Counsel, in the light of the recommendation made by the Academic Experts' Committee, the University itself has got ample power to order re-designation and there was no need for it to refer the matter to the Government.
6. In support of his submissions, the learned counsel has drawn my attention to Exhibit P17, through which the respondent University accorded re-designation to one Dr. Roy C. Mathew, a Project Officer, in the School of Gandhian Thought and Development Studies of the respondent University. According to the learned Senior Counsel, Dr. Roy C. Mathew was working on a temporary basis, but his case was considered for re-designation without referring the issue to the Government.
7. The learned Senior Counsel has also submitted that, presently the petitioner draws more salary than she is likely to draw once her position is re-designated as Assistant Professor. Only given her brilliant academic career and long stint discharging the teaching obligations in the respondent University, she has, contends the learned Senior Counsel, sought re-designation.
8. To bolster his submissions on the issue of prevalent practice of re-designation, the learned Senior Counsel would contend that while the petitioner was in Government service, prior to her joining the respondent University, one of her colleagues, namely Smt. Janaki K.N., another Clinical Psychologist, had her post converted as could be seen from Exhibit P11. The learned Senior Counsel, therefore, urges this Court to allow the writ petition.
9. Per contra, the learned Standing Counsel for the respondent Corporation has submitted that, though the petitioner has gone on record saying that by way of re-designation she should be losing some of her salary, the catch lies in the fact that she would have her tenure extended by four more years.
10. Adverting to the issue of respondent University referring the matter to the Government despite Exhibit P12 Academic Experts' Committee recommendation, the learned Standing Counsel would contend that in terms of Clauses (viii) and (ix) of Section 23 of the Mahatma Gandhi University Act, 1985 (‘the Act’ for brevity), any decision taken by the University involving financial commitments on the part of the Government shall have its prior approval. Thus, the learned Standing Counsel contends that the action of the respondent University in referring the matter to the Government for approval cannot be found fault with.
11. The learned Standing Counsel, in justification of Exhibit P17 re-designation proceedings in favour of Dr. Roy C. Mathew, contends that at that time there was a clear vacancy in existence. According to him, since it was not a creation of a new post in the name of re-designation, and since it did not involve any additional financial burden on the part of the Government, the University did not deem it fit to refer the matter for the approval of the Government.
12. The learned Standing Counsel has also contended that, even the re-designation of the erstwhile colleague of the petitioner, as could be seen from Exhibit P11, was made subject to ratification by the Government. In some and substance, the learned Standing Counsel has contended that it is an absolute pre-condition to have prior sanction of the Government for re-designation of any post, and the petitioner being no exception, the respondent University has rightly sought the approval of the Government. Accordingly, the learned Standing Counsel has urged this Court to dismiss the writ petition.
13. In reply thereto, the learned Senior Counsel has submitted that though the petitioner had her initial entry into service as a Clinical Psychologist, admittedly in the non- teaching category, from day one, in the light of long leave of one of the Assistant Professors in the department, namely Mr. M.X. James, the petitioner has begun discharging her initial duties as one of the teaching faculties. To this day she has been teaching. The learned Senior Counsel has also further contended that the said Mr. M.X. James has already resigned, thereby giving rise to a clear vacancy. Going by the rationale adopted by the respondent University in case of Dr. Roy C. Mathew, the same benefit, contends the learned Senior Counsel, ought to have been extended to the petitioner by re-designating her position, inasmuch as there is a clear vacancy existing in the department.
14. Heard the learned counsel for the petitioner and the learned Standing counsel for the respondents, apart from perusing the record.
15. Indeed, the facts in the writ petition are not much in dispute. The petitioner, possessing the requisite qualifications, secured her entry into the respondent University in June 1994 as a Clinical Psychologist. At any rate, she began her teaching career simultaneously in the light of the long leave availed by Sri. M.X. James. The fact, however, remains that, in course of time, the said incumbent Assistant Professor resigned his post and left the University.
16. As could be seen from Exhibit P12, the Academic Experts' Committee unanimously recommended the re-designation of the petitioner. In any event, in terms of Clauses (viii) and (ix) of Section 23 of the Act any appointment of teachers in the University requires prior approval of the Government, if creation of such post involves expenditure in excess of the budgetary provision. Thus, what is required to be noticed is that firstly it should be creation of a post and secondly it should involve additional expenditure on the part of the University, which eventually is to be borne by the Government. Evidently, based on the said provision, the Government, through Exhibit P16, rejected the proposal of re-designating the post of the petitioner.
17. To appreciate the flow of events, it is apposite to refer to the above referred proceedings of the respondent University and the 3rd respondent Government in some detail.
18. The Academic Experts Committee, comprising the Vice-Chancellor and four others, through Ext.P12, recommended the petitioner’s case for re-designation by opining as follows:
“The committee unanimously resolved to recommend to re-designate Dr. Aniamma as Assistant Professor in Clinical Psychology on the basis of the Expert's assessment and the collective appraisal of the incumbent's academic performance.
The Committee also unanimously resolved that a personal interview is not necessary in the case. Nevertheless, the claims made by the incumbent in the self-appraisal report have to be supported by original documents, the verification of which may be made before the decision is made.”
19. In the light of the recommendation made by the Academic Experts Committee, the 2nd respondent University through Ext.P13 recommended to the Government the petitioner’s case for re-designation. In fact, the respondent University, while forwarding the proposal with its recommendation, has observed, inter alia, thus:
“Dr. Aniamma Mathew. P. vide her representation to the Vice-Chancellor dated 11.05.2011, has submitted that prior to joining MGU service she was working in NIMH at Hyderabad, NIMHANS at Bangalore and under the Directorate of Medical Education in Kerala. During the period of her leave without allowance, she was working as Asst., Professor and later as Asso. Professor in Eritrea. As the Clinical Psychologist under the Directorate of Medical Education, she undertook teaching assignments and supervised research. Also the Clinical Psychologists working under the Directorate of Medical Education in Kerala are promoted to the teaching position as and when vacancy arises.
… The report of the Expert Committee was placed before the Syndicate and the Syndicate at its meeting held on 23.05.2012, resolved to consider the placement of Dr. Aniamma Mathew. P., Clinical Psychologist as Faculty in the School of Behavioural Sciences only after getting sanction/ Government Concurrence, as the upgradation of the post requires concurrence of the Government.
Under these circumstances, the Government of Kerala is requested to accord sanction to upgrade the post of Clinical Psychologist in the School of Behavioural Science to that of Asst. Professor in Clinical Psychology so as to place Dr. Aniamma Mathew .P. as a faculty in the School of Behavioural Sciences.”
20. In response to certain queries from the Government, the respondent University has informed the Government through Ext.P15 thus:
“The post of Clinical Psychologist in the School of Behavioural Sciences is not a feeder category for appointment as Lecturer in Clinical Psychology in the School. The Clinical Psychological service of the School of Behavioural Sciences receives references from the Medical College and other educational institutions which provide the clinical material for the practical training of the M.Sc., M. Phil. and Ph.D. students of the School. The Clinical Psychologist, who heads the clinical/practical laboratory, is serving as a faculty while taking the role of a clinician. Therefore, it is appropriate to convert this post of Clinical Psychologist to a Clinical faculty position as it has been the practice in the National Institutes for Disabilities, wherein the Clinical Psychologists'' have to perform both the clinical and academic roles.
Dr. Aniamma Mathew P. is presently drawing the pay, Rs.27140/- in the scale of pay Rs.22360-37940/- and the gross salary amounts to Rs.39353/- p.m. if the post of Clinical Psychologist held by Dr. Aniamma Mathew is converted as Assistant Professor, the gross amount she will draw is Rs.37152/-p.m. ( including D. A.), Since the age of retirement of University teachers is 60, the additional financial commitment involved in the matter will be in terms of the payment of salary to the incumbent until her attaining 60 years and the resultant increase in her pensionary benefits.”
21. Eventually, the 3rd respondent Government issued Ext.P16 proceedings rejecting the recommendation of the respondent University observing thus:
“I am directed to invite your attention to the reference cited and to inform you that Government finds no special circumstances for upgrading the post of Clinical Psychologist in School of Behavioural Science under your University in order to place the incumbent in the UGC pattern. Therefore Government is not in a position to concur your proposal and hence rejected.”
22. In the same vein, it is appropriate to examine clauses (viii) and (ix) of Section 23 of the Act, which read as follows:
“23. Powers of Syndicate.-Subject to the provisions of this Act and the Statutes, the executive powers of the University including the general superintendence and control over the institutions of the University shall be vested in the Syndicate and subject likewise the Syndicate shall have the following powers, namely:-
…
(viii). to appoint teachers and other employees of the University and prescribe their duties.
(ix). to create administrative, ministerial and other necessary posts:
Provided that no post shall be created by the Syndicate without prior approval of the Government if creation of such post involves expenditure in excess of the budgetary provision.”
(emphasis added)
23. A perusal of the above provision makes it manifestly clear that the prior approval of the Government is required in the event of creating an additional post involving expenditure. The fact, however, remains that through Exhibit P17 the post of one Dr. Roy. C. Mathew was re-designated without reference to the Government. The justification supplied by the University is that since there was a clear vacancy at that time, notwithstanding the fact that the said employee was working on a temporary basis, he had been extended the benefit.
24. In the present instance, the petitioner has been working for more than two decades in a permanent vacancy and all through she has been teaching the subjects in her department. It is not denied by the respondent University that Sri. M.X. James, in whose absence the petitioner has undertaken the assignment of teaching, eventually resigned and left the University. The assertion of the learned Senior Counsel for the petitioner remains unrebutted that the post vacated by Sri M.X. James remains unfilled; in other words, there is a clear vacancy. If it is otherwise permissible, the parity of treatment demands that the petitioner also ought to have been given the same benefit as has been extended to Dr.Roy C. Mathew in the name of re-designation. This Court, nevertheless, is conscious of the fact that, if at all the re- designation of Dr. Roy C. Mathew is in violation of any statutory provision, in the name of parity of treatment, this Court will not ask for perpetuation of that illegality.
25. As could be seen from the record, as recently as on 19.11.2014 the petitioner submitted a representation to the Vice-Chancellor of the respondent University to consider her case for re-designation on a par with that of Dr. Roy C. Mathew.
26. It meets the ends of justice if the respondent University is directed to consider the case of the petitioner, especially going by the submissions made by the learned Standing Counsel for the respondent University that there could be re-designation without reference to the Government once there is a clear vacancy.
27. Accordingly, in the facts and circumstances, having regard to the respective submissions of the learned counsel for the petitioner and the learned Standing Counsel for the respondent University, this Court disposes of the writ petition with a direction to the respondent University to consider Exhibit P19 representation of the petitioner taking into account Exhibit P17 proceedings in favour of Dr. Roy C. Mathew, as well as the observations herein made to accord re-designation if there is a clear vacancy in existence, and pass appropriate orders thereon as expeditiously as possible. It is made clear that until the respondent University takes a decision on petitioner's Exhibit P19 representation, the petitioner shall be permitted to continue in the present post discharging her teaching duties as usual.
DMR/-
DAMA SESHADRI NAIDU JUDGE